NITENDRA KUMAR TOMER v. UNOX S.P.A.
Incompetence of Appeals Filed in Corporate Debtor's Name by Suspended Directors After IRP Appointment and the Impermissibility of Time-Barred Amendments to Cure Such Jurisdictional Defects.
Court: Supreme Court of India
Citation: 2026 INSC 356
Decision Date: 10-04-2026
List of Laws
Insolvency and Bankruptcy Code, 2016; Section 9, Insolvency and Bankruptcy Code, 2016; Section 17, Insolvency and Bankruptcy Code, 2016; Section 61, Insolvency and Bankruptcy Code, 2016; Law of Limitation; Corporate Law - Management Vesting in IRP
- Facts: An operational creditor, Unox S.P.A., filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC), against the corporate debtor, Ambro Asia Private Limited. The National Company Law Tribunal (NCLT) admitted the application on 18.04.2024 and appointed an Interim Resolution Professional (IRP). On 24.04.2024, Nitendra Kumar Tomer, a suspended director of the corporate debtor, filed an appeal before the National Company Law Appellate Tribunal (NCLAT) in the name of the corporate debtor itself, rather than in his own name. Despite noting that the corporate debtor can only be represented by the IRP after admission and that the appeal was maintainable in the name of the corporate debtor, the NCLAT allowed an amendment in August 2025 to substitute the suspended director as the appellant. The NCLAT subsequently dismissed the appeal on merits, leading to this appeal before the Supreme Court.
- Procedural Posture: The appellant, a suspended director, challenged the judgment of the NCLAT before the Supreme Court of India under Section 62 of the Insolvency and Bankruptcy Code, 2016.
- Issue: Whether an appeal filed in the name of a corporate debtor by a suspended director after the appointment of an IRP is a curable defect, and whether such an "incompetent" appeal can be converted into a maintainable one after the expiry of the statutory limitation period.
- Holding: No, such an appeal is wholly incompetent from its inception and cannot be cured by amendment after the expiry of the limitation period prescribed under Section 61(2) of the Code.
- Reasoning: The Court reasoned that under Section 17(1)(a) of the IBC, the management of the corporate debtor vests in the IRP from the date of appointment. Consequently, a suspended director has no legal authority to represent or file an appeal in the name of the corporate debtor. Such a filing is not a mere "procedural defect" or "curable irregularity" as seen in civil suits, but a fundamental lack of competency. The Court emphasized that Section 61(2) of the IBC provides a strict 30-day limitation period with a maximum 15-day condonable window. Allowing an amendment to substitute the appellant long after this period (in this case, over a year later) would "desecrate" the statutory prescription of limitation. The NCLAT had no jurisdiction to entertain a time-barred amendment that sought to breathe life into a non-maintainable filing.
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